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Immigrant Visas Without Labor Certification

The following is a discussion of the different immigrant visa classifications that bypass the labor certification process. Some of these do not require a job offer or employer sponsor and the alien may self-petition.

The special immigrant visa petition called the National Interest Waiver is in the EB-2 immigrant visa category and the Extraordinary Ability, Outstanding Researcher and Multinational Executive/Manager petitions are under the EB-1 category. This distinction becomes critical if immigrant visa numbers are exhausted. Usually, the visa numbers first run out in the EB-2 category. Thus, obtaining an approval of an EB-1 immigrant visa petition is far more attractive, especially to aliens from India and China.

Extraordinary Ability Alien (EB-1)

Workers of extraordinary ability are defined by statute as those who can show that they have "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." The regulations define extraordinary ability as a level of expertise indicating that the individual is one of "that small percentage who have risen to the very top of the field of endeavor." In other words, the worker should be the cream of the crop.

Receipt of a major, internationally recognized award, on its own, can qualify a worker for extraordinary ability classification, such as the Nobel Prize. Other lesser awards might also qualify, but we will have to document that the particular award rises to the level of a Nobel Prize or similar awards.

The regulations provide for alternative evidence if the worker has not received a single high-ranking, distinguished, internationally recognized award. To satisfy the alternative requirement, the petition must include evidence that the individual satisfies at least three of the following criteria:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
Published material about the alien in professional or major tradepublications or major media relating to the alien's work in his field;
Evidence that the alien is a judge of the work of others in the same or allied field of endeavor;
Evidence of the alien's original contributions of major significance to the field;
Authorship of scholarly articles in the field, in professional journals or other major media;
Display of the alien's work at artistic exhibitions or showcases;
Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
Evidence that the alien commands high remuneration in relation to others in the field;
Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

The alien may self-petition under this category.

Outstanding Researcher (EB-1)

In order to qualify as an "outstanding researcher," the alien must demonstrate that he or she is internationally recognized as outstanding in a specific area. The Immigration and Naturalization Service requires the showing of at least two of the following in order to satisfy this test:

Receipt of major prizes or awards for outstanding achievement in the academic field;
Membership in associations in the academic field that require outstanding achievements of their members;
Published material in professional publications written by others about the alien's work in the academic field;
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
Evidence of the alien's authorship of scholarly books or articles in the academic field.

The alien must have at least three years of research experience in his or her field. There must also be a job offer from an employer.

Multinational Transferee, Executive and Manager (EB-1)

To obtain permanent residency as a Multinational Executive or Manager, the alien must have been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition, or, in the case of certain foreign workers presently in the U.S., one of the three years preceding entry to the U.S. as a non-immigrant. The past employment must have been with the same employer, an affiliate, or a subsidiary of the employer. The foreign worker must be coming to work in an executive or a managerial capacity. There must have been relationship for at least one year between the two affiliated companies.

National Interest Waiver (EB-2)

Foreign professionals who hold at least a Master's Degree or can prove exceptional ability in certain fields are eligible for legal permanent residence as advanced degree professionals absent the labor certification requirement. If the foreigner's field benefits the national interest (improves the United States economy, health care system, environment, education, housing, culture, technology, etc.) and the foreigner can submit evidence of prospective significant contributions to his or her field, he or she may qualify for a "National Interest" waiver from the labor certification process. In particular, the alien must satisfy the requirements of the recent precedent National Interest Waiver case of Matter of New York State Dept. of Transportation, which requires that:

The alien is seeking employment in an area of "substantial intrinsic merit";
The alien's prospective benefit is national in scope; and
"The alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications."

Evidence submitted in support of the national interest waiver includes that filed in support of the extraordinary ability and outstanding researcher petitions (publications, presentations, awards, patents, etc.). The alien may self-petition or be sponsored by an employer.

Immigrant Investor Petition (EB-5)

An alien entrepreneur may seek immigrant status if he or she seeks to establish a new commercial enterprise:

That the alien has established;
In which the alien has either invested, or is in the process of investing $1,000,000 (or $500,000 for target employment areas); and
Which will benefit the United States economy and create ten full-time employment positions for United States citizens or lawful permanent residents (other than the spouse, daughter or son of the alien investor).

The INS does not require immediate creation of 10 full-time positions for United States workers. If such workers in fact are already on the payroll of the organization at the time the investor is applying for a visa, tax records or INS I-9 forms (Employment Eligibility Verification) or other documentation may be supplied. However, in the more likely situation that the investment enterprise will only exist after the entrepreneur enters the United States, a copy of a comprehensive business plan projecting a need for no fewer than 10 qualified employees within two years and their anticipated hiring dates will be accepted.

A business plan should include the following:

How the commercial enterprise is organized (whether as a corporation, general or limited partnership, business trust, joint venture, holding company, sole proprietorship, or other entity);
The concept and purpose behind the enterprise;
A description of the physical premises, including photographs (if available), or drawings of the planned premises if not yet constructed;
Financial forecasts and projections for implementation of the business plan, including requested capitalization and anticipated return on investment, and estimated timetables for construction, commencement of operations, and hiring;
Specific market research demonstrating that the target area for business will support it; and
Credentials of key persons responsible for development and management of the business enterprise, including the investor if appropriate.

The business plan should be straightforward and comprehensible to ensure the investor understands all aspects of the investment, and so that INS adjudicators will know in a brief review that the investment will satisfy statutory and regulatory requirements for conditional residence.

Immigrant investors and their spouses and children enter the U.S. in conditional permanent resident status subject to termination after two years. To preserve permanent resident status, they must petition for removal of the condition during the 90-day period before the second anniversary of their original admission.

The petition for removal of the condition must include evidence that a commercial enterprise was established and that the petitioner "invested or was actively in the process of investing the requisite capital." The investor must also show that he or she "sustained" these actions throughout the period of the investor's residence in the United States.

One caveat for alien immigrant investors: the United States taxes such investors for their worldwide income during their two-year conditional residency.

If you wish to investigate your eligibility for legal benefits discussed on this site, please consult with Attorney Monique Kornfeld:

Phone: 617-323-5049 • Email: mkornfeld@mhkimmigration.com • Newton, MA